Schiavo Thoughts: Judge Whittemore's Order Explained

Abstract Appeal (Blog) ^ | March 22, 2005 | Matt Conigliaro

[yatros from flatwater]

Schiavo Thoughts: Judge Whittemore's Order Explained
Author: Matt Conigliaro

I previously posted Judge Whittemore's order, and it's here.

In short, the order concludes that the Schindlers have identified no violation of Terri's constitutional rights. For those looking for more information, here's my extended summary:

Judge Whittemore observed that the Schindlers are seeking a temporary injunction -- one mandating the reinsertion of the feeding tube. There are several requirements that must be met to obtain a temporary injunction. The court found the requirements applicable here to be met except the most important one: a showing of a substantial case on the merits of the Schindlers' claims. In other words, this comes down to whether the Schindlers' arguments have any merit.

Judge Whittemore individually examined the five claims asserted in the complaint the Schindlers filed yesterday. You can read that complaint here.

Count I of the complaint alleges that Terri was denied due process when Judge Greer made the decision, following a trial, on what Terri would want. Judge Whittemore found no due process violation. He ruled:

Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme. By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant. Plaintiffs' contention that the statutory scheme followed by Judge Greer deprived Theresa Schiavo of an impartial trial is accordingly without merit. Defendant is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.

Count II of the complaint alleges that Terri was denied due process when Judge Greer failed to appoint a guardian ad litem or an "independent" attorney for Terri and failed to meet Terri in person. Judge Whittemore found due process (including Florida's statutes) did not require the trial judge to meet Terri and that a guardian ad litem was appointed and testified at the trial on Terri's wishes. Regarding the lack of an attorney just for Terri, Judge Whittemore found:

Throughout the proceedings, the parties, represented by able counsel, advanced what they believed to be Theresa Schiavo's intentions concerning artificial life support. In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation. Finally, with respect to presenting the opposing perspective on Theresa Schiavo's wishes, the Court cannot envision more effective advocates than her parents and their able counsel. Plaintiffs have not shown how an additional lawyer appointed by the court could have reduced the risk of erroneous rulings....

[T]he court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests.

Count III of the complaint alleged that Terri was denied her right to equal protection because only incapacitated persons have their rights determined by someone else, whereas different procedures are utilized where a competent person can make a decision for himself or herself. Judge Whittemore found this claim to be without merit for the same reasons discussed regarding count I and based on the U.S. Supreme Court's decision in Cruzan v. Missouri, where the supreme court explained that these situations are different and states can treat them differently.

Counts IV and V of the complaint alleged that Terri's rights to religious freedom were denied because the removal of a feeding tube is supposedly contrary to the teachings of the Catholic Church, and Terri is Catholic. Judge Whittemore concluded that a state court judge's adjudication of a person's wishes is not a burden by the government on the person's religious beliefs, and that Michael Schiavo and the hospice cannot be sued here because they are not government actors. The law in this area addresses religious burdens imposed by governments.

These rulings appear to be decisions on the merits of the Schindlers' complaint, not just preliminary views that the Schindlers may not be able to prove their claims.

Once again, Judge Greer's decisions -- and the procedures required by Florida's statutes and Florida's judiciary -- have been upheld. Once again.

Expect a lightning fast appeal to the Eleventh Circuit. And a very quick response.

[yatros from flatwater]

Blog related to legal issues in Florida nad the 11th Circuit.

[yatros from flatwater]

nad = and

[KeyLargo]

I have been wondering where are all the usual black spokesman such as JJ and Rev. Al on this issue?

Charles Rangel stood up and said that Terry Schiavo should die.

I believe that if Terry was a black woman that there would be outcries from the black community claiming racism of the white judicial system and state ordered execution of another poor black person.

Or, if Terry were a lesbian, would there be any outcry from Barny Frank and the Left?

[ALOHA RONNIE]

.

GOD Save the Vulnerable from the Bullies


TERRI = Breathe, Eats, Speaks / MICHAEL = "When is that B-ITCH gonna die?" ..per Nurses

http://www.Freerepublic.com/focus/f-news/1366750/posts

.

[finnman69]

I am unsure how i feel about this entire scenario and understand the arguments from both sides. I cannot take a side although there is plenty of tragedy to go around.

Hopefully new legislation will be created or existing legislation clarified to deal with situations like this. In addition, everyone should update the living wills or create one to express you wishes should you ever get into this situation.

[MomwithHope]

Why the heck can't Congress enforce those supoenas and get some federal marshals down there.

[TAdams8591]

PLEASE, PLEASE Call or FAX!!!!


Larcenia J. Bullard
850-487-5127 (Tallahassee)
305-668-7344 (District Office)
305-668-7346 (Fax)


Walter Campbell Jr.
850-487-5094 (Tallahassee)
954-346-2813 (District Office)


Mandy Dawson
850-487-5112 (Tallhassee)
954-467-4317 (District Office)
954-467-4331 (Fax)


JD Alexander
850-487-5044 (Tallhassee)
863-679-4411 (District Office 1)
863-679-4413 (Fax 1)
863-386-6016 (District Office 2)
863-298-7677 (District Office 3)
863-298-7680 (Fax 3)


Nancy Argenziano
850-487-5017 (Tallahassee)
352-860-5175 (District Office 1)
352-402-6664 (District Office 2)


Lisa Carlton
850-487-5081 (Tallahassee)
941-486-2032 (District Office)
941-486-2050 (Fax)


Paula Dockery
850-487-5040 (Tallahassee)
863-413-2900 (District Office)
863-413-2902 (Fax)


Evelyn J. Lynn
850-487-5033 (Tallahassee)
386-676-4000 (District Office)
850-487-5542 (Fax)


Burt L. Saunders
850-487-5124 (Tallahassee)
239-417-6220 (District Office 1)
239-417-6223 (Fax 1)
239-338-2777 (District Office 2)
239-338-2779 (Fax 2)

[Robert A Cook PE]

OK - let me see if I get this (democratic-appointed judge) judge right:

If you're a US Supreme Court justice wanting to keep 17 year old murderers alive, you can read "international" laws and international opinions and decide that US laws must be thrown out in total.

If you want an innocent woman killed because you are pro-abortion, and her supporters are pro-life, you can ignore evidence and "follow the rules of the court" to decide that there is no reason to feed her and give her water.

[SoFloFreeper]

Counts IV and V of the complaint alleged that Terri's rights to religious freedom were denied because the removal of a feeding tube is supposedly contrary to the teachings of the Catholic Church, and Terri is Catholic. Judge Whittemore concluded that a state court judge's adjudication of a person's wishes is not a burden by the government on the person's religious beliefs, and that Michael Schiavo and the hospice cannot be sued here because they are not government actors. The law in this area addresses religious burdens imposed by governments.

Isn't the hospice acting upon the orders of a government actor?

[bvw]

Eichmann dotted all his I's and crossed all his T's too. The extermination of all the Jews, Gypsies and all other such classes the State found less than desirable proceeded under perfect legal process.

A few thousand years earlier a viceroy in what is now Iran -- Haman by name -- also very carefully dotted i's and crossed t's. His plan for extermination of the undesirables also was to proceed with all DUE PROCESS.

[bvw]

Any order to murder and innocent is a illegal order. There is no duty to obey it -- there is a DUTY to dis-obey it.

[Mother Mary]

Thanks for posting this.

Did you hear the interview this AM on Fox News of the nurse, Carla Iverson, who cared for Terri in 1995-96? She states that Michael wanted Terri dead, and even attempted to kill her with an insulin injection.

Will this have any effect on the judicial review?

[traderrob6]

The Law = anything a judge says it is

[lastchance]

. In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation. This is the statement that has been truly scratching my head. So by this argument George Felos and Michael have shown a duty of care to Terri by fighting to have her tube removed? It also disturbs me that it seems the judge did not address the Florida Statutes on Guardianship violated by Michael. Of course Greer refused to entertain motions to that effect. So I wonder were the Schindler's attorney allowed to present new evidence to Whitmore or was it just the same ole same ole evidence and motions reviewed by Judge Greer. You know the ones that were so impartial. HA.

[MortMan]

In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation.

Judge Whittemore has asserted that Felos "owed a duty of care" to Terri. I note that, from this excerpt, there is no statement that this duty was fulfilled.

[bvw]

Without respect for life -- The Law ends up being whatever tyranny the strong may impose. For us -- it is whatever we each indivually, and in association with any others, allow and do not fight -- for basic survival -- against.

[yatros from flatwater]

Apparently, if "due process" is observed, all is well.

[traderrob6]

If I'm not mistaken the law that Congress passes explicitly states that previous state court finding of fact should be disregarded. Am I wrong?

[apackof2]

Expect a lightning fast appeal

Teri has been without food and water since Friday, how much longer can she wait?

Prayers for Teri and her family

[yatros from flatwater]

I did hear her interview on the David Allen Show:
http://www.thedavidallenshow.com/guests/iyer.carla.20050309

I doubt very much that the judges will pay attention to anything other than "what is right in their own minds".